960 F.

2d 145

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of

unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
William Alfred BIGGER, JR., Plaintiff-Appellant,
v.
John DOE; STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendants-Appellees.
No. 91-1743.

United States Court of Appeals,

Fourth Circuit.
Argued: February 6, 1992
Decided: April 23, 1992

Appeal from the United States District Court for the Eastern District of
Virginia, at Richmond. James R. Spencer, District Judge. (CA-90-631-R)
ARGUED: John Bertram Mann, LEVIT & MANN, Richmond, Virginia,
for Appellant.
James Willard Walker, MORRIS & MORRIS, Richmond, Virginia, for
Appellees.
E.D.Va.
AFFIRMED.
Before POWELL, Associate Justice (Retired), United States Supreme
Court, sitting by designation, ERVIN, Chief Judge, and NIEMEYER,
Circuit Judge.
OPINION

PER CURIAM:

William Alfred Bigger, Jr., seeks to set aside his release of a personal injury
claim given to State Farm Insurance Company, contending that (1) he lacked
capacity to give a release at the time he signed the settlement papers, (2) the
release was procured through duress or undue influence, (3) State Farm acted
fraudulently or in bad faith, and (4) the release was the product of mutual
mistake. The district court, ruling that Bigger failed to advance sufficient
evidence to support his claims, granted State Farm's motion for summary
judgment. This appeal followed.

While the proper resolution of this case depends on a factual analysis, we

recognize that if facts of record and the fair inferences to be drawn from them,
when considered in the light most favorable to Bigger, establish a prima facie
showing to support any theory advanced by him, we would be required to
remand the case for trial. On the other hand, if the facts, considered in this
manner, fail to justify proceeding further to trial, then we would affirm. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1985).
The analysis is to be conducted by us de novo. See Felty v. Graves-Humphreys
Co., 818 F.2d 1126, 1127-28 (4th Cir. 1987).

After careful consideration of the entire record, we are satisfied that the facts
that Bigger has advanced fail to support any of the grounds alleged for setting
aside the release given by him. On the contrary, the record shows that he
understood the nature and effect of the release at the time he signed the
settlement papers. Although the record demonstrates that Bigger felt pressure
from his mother and the immediacy of outstanding bills to agree to an early
settlement of his personal injury claim, there is no evidence that State Farm
acted improperly.

The underlying facts are not disputed, nor are the circumstances of Bigger's
settlement with State Farm. Late in the evening, on October 15, 1988, when
Bigger was driving a borrowed automobile south on Interstate 95 in northern
Virginia, an unidentified vehicle pulled along beside him and the operator, who
was unknown to Bigger, fired a gun at Bigger, the bullet grazing Bigger's head.
Bigger lost control of his vehicle and ran into an embankment, causing personal
injury. The driver of the other vehicle was never apprehended, or even
identified.

Over the next few weeks, Bigger was examined and treated in various medical

facilities by a number of physicians. Dr. Kim Harris, a neurologist, apparently

found that Bigger sustained brain injury as a result of the accident and referred
Bigger to Dr. Frank Lira for a determination as to whether Bigger was
"disabled" for the purpose of claiming social security disability benefits. Dr.
Lira evaluated Bigger in November and December of 1988. In his report, Dr.
Lira noted that Bigger complained that since the accident he had" become
increasingly confused, disoriented, unable to concentrate, emotional[ly]
withdrawn, and severely depressed." Dr. Lira described Bigger as a "rather
withdrawn, nonverbal, passively cooperative individual," and stated:
6
INTELLECTUAL
EVALUATION: With a chronological age of 30-Mr. Bigger
achieved a Verbal I.Q. of 69, a Performance I.Q. of 66, and a Full Scale I.Q. of 66
which places him in the mentally deficient range of intelligence. These scores likely
represent marked deterioration in his intellectual abilities as it is suspected Mr.
Bigger was at one point in time at least an individual with average intellectual
endowment.***
7
Within
performance areas, Mr. Bigger was unable to concentrate well for extended
periods of time and could not solve tasks that required the use of logical thought
processes. In addition, due to marked psychomotor retardation, he was unable to use
newly presented information in a rapid and efficient manner.
8

On January 5, 1989, Bigger was admitted to the McGuire Veteran's

Administration Hospital in Richmond for inpatient treatment. His principal
diagnosis upon admission was post-traumatic stress disorder. His treatment
there was under the supervision of Dr. Kevin E. Gorin.

Shortly after the incident and some two months before he entered the hospital,
Bigger made a claim under the uninsured motorist and medical payment
coverages of the policy issued by State Farm on the automobile that Bigger was
driving. The policy had a $25,000 limit under these coverages. Over the next
three months, Bigger and his mother were in regular contact with State Farm's
claims representative, Diane Jones. They presented medical bills totaling
$1,594.21, all of which were paid by State Farm. They also demanded
settlement for policy limits after having consulted their attorney. When State
Farm persisted in offering $15,000, Bigger and his mother established January
27, 1989, as a deadline for State Farm to settle at their figure, after which they
intended to turn the case over to their attorney. Diane Jones repeatedly advised
both Bigger and his mother that her supervisor only authorized Jones to pay
$15,000 to settle the case. Even after being admitted to the VA hospital, Bigger
called Jones several times to inquire whether Jones had authority to settle for
$25,000 and Jones again reported on each occasion that she only had $15,000 to

settle. Finally, under pressure from his mother and out of a need to pay personal
bills, Bigger decided to settle at State Farm's figure. He called Jones to set up a
meeting to consummate the settlement and his mother confirmed the
appointment, arranging to pick up Jones and bring her to the hospital. Jones
advised Bigger that she would bring a check for the $15,000 and some papers
to sign.
10

When Dr. Gorin, Bigger's doctor, learned that a settlement offer had been
proposed, he informally evaluated Bigger to determine whether he was
competent to enter into the settlement agreement. Although no formal
competency evaluation was completed, Dr. Gorin stated that he spoke with the
clinical staff and with experts in the field of psychology and psychiatry. He also
reported speaking with Bigger's attorney in Petersburg, Charles Cuthbert, whom
Bigger had retained immediately after the shooting incident to file a claim for
social security disability benefits and to consult with Bigger about his personal
injury claim, although Cuthbert's file does not confirm the conversation. As the
result of these inquiries, Gorin concluded that Bigger was competent to sign the
agreement and described Bigger's general mental state at the time as follows:

11 can function from day-to-day basis and do activities of daily living and go out
He
and, you know, balance his checkbook and go out and do the laundry and buy
clothes and buy food, okay? But at any given time he's on the road and he may have
seen a car similar to the one that was involved in the accident, he may go into a
flashback or fit of rage because of what had happened and what he feels, okay? So
there is a difference between good shape mentally, which he's not in, and being
competent, at least in my opinion.
12

On January 27, 1989, Diane Jones met with Bigger in his hospital room to
complete the settlement. Also present were Dr. Gorin and Lucy Bigger,
Bigger's mother. At that time Bigger signed a "Release" and "Release and Trust
Agreement" and was given a check for $15,000. The documents were
witnessed by Dr. Gorin and Lucy Bigger.

13

According to Jones, when she came to the hospital that day, Bigger was
"pleasant, very well groomed, and ... sitting up in bed." Before presenting the
documents for signature, Jones said she explained the settlement to Bigger as
follows:

I14explained to him that I was there to, you know, bring him the check that I told him
about and that he would be expected to sign a release that would release all claims,
and that he would not be able to sue the company or the insured if he signed it. And
he said he understood that, and he did say that, you know, he was sorry that I

couldn't get the 25 [$25,000], because that's what he wanted, but he was willing to
accept the 15 [$15,000], and that he thought once this whole thing was over, he
would get it out of his mind.
15

Describing the same day and events, Bigger testified that he signed the papers
because his mother wanted him to and he did not want "to make a scene." He
stated he did not read the papers, but he under stood that he was not getting the
$25,000 that he demanded and that $15,000 was all that he was getting. As he
explained in his own words:

16
Q:You
knew when you took the check that that was going to be all that it was going
to be, right, you weren't going to get any more money from State Farm?
17
A:I think that that was-I think that's what maybe what was explained to me.***
18
A:She
[Jones] was just saying, "This is all the money they are going to give you,"
because of my military training and I just felt like, if this is it, my mother seemed
like that she wanted to do the settlement. I just signed the papers, that's what I did.
19

Bigger explained further that he was under pressure from his mother to settle.
His mother paid Bigger's bills and Bigger was behind in rent and car payments.
He stated that his mother used the money that he received to pay the bills and
the difference between the sale of his old car and the purchase of a new one.

20

Describing Bigger's competence at the specific time that he signed the

documents, Dr. Gorin testified:

I21spoke with him personally on the day he did sign the document, that I did witness it
asking is he sure this is what he wanted to do, and I was comfortable with the fact
that he understood the consequences of signing this document in terms of being
unable to receive any other money down the road.
22

Over a year and a half after Bigger signed the release and received the money,
he filed this action to set aside the release, contending that he was incompetent
at the time and that he was coerced to sign the settlement papers.

23

None of the facts surrounding the circumstances of the settlement are disputed,
and the only basis on which Bigger attempts to create a question of fact is the
conclusion reached later by an expert witness, who did not interview Bigger but
only reviewed the medical records, that "based upon my review of these
reports, it is my considered opinion that William Bigger was not competent to
understand the nature of the documents he signed on January 27, 1989, and the

character of the transaction he undertook on that date." The district court

rejected the contention that this conclusory statement created a question of fact
and granted State Farm's motion for summary judgment.
24

The standard under Virginia law for determining competence is not disputed. A
person is considered competent to make a contract if he "has sufficient mental
capacity to understand the nature of and the effect of the transaction to assent to
its provisions." Price's Ex'r v. Barham, 137 S.E. 511, 512 (Va. 1927). A person
is presumed to be competent to enter into a contract, and the burden is on the
party seeking to avoid the contract to "strictly establish[ ]" his incompetence.
Chesapeake & Ohio Ry. Co. v. Mosby, 24 S.E. 916, 916 (Va. 1896). Weakness
of mind short of insanity, immaturity of reason, or lack of experience or skill is
not by itself sufficient to afford relief from a contract. See id.

25

In this case Bigger had limited intellectual capacity and was suffering from
post-traumatic stress disorder. While the evidence presents a factual dispute
about whether an adequate psychological evaluation could have been made by
Dr. Gorin or anyone else on January 27, 1989, the circumstances under which
the release was signed are not disputed. See Price's Ex'r, 137 S.E. at 512 ("The
testimony of attesting witnesses to documents and of others present at their
execution is entitled to peculiar weight."). Bigger was fully aware that $25,000
was the maximum amount that he could receive and repeatedly he sought to
receive that amount. When his efforts and those of his mother failed to move
the insurance company from its standing offer of $15,000, he accepted the
figure knowing he would receive no more. While the specific terms of the
release were not read by him, or might not even have been fully understood by
him had he read them, he did understand that he was giving up his claim
against State Farm and that he would receive no more money in respect of his
claim. Any pressure to sign the settlement papers came from his mother and his
perceived need to pay his bills, not from the insurance company. Indeed, the
settlement meeting in the hospital was initiated by Bigger and his mother. In
these circumstances, Bigger has failed to make a prima facie showing that he
lacked the capacity "to understand the nature and effect" of the release and to
agree to give it, a showing on which he has the burden of proof, see Mosby, 24
S.E. at 916.

26

The same facts fail to support any claim of duress, undue influence, bad faith,
or fraud by State Farm. The most that the record shows in this regard is that
State Farm persisted in standing by its initial offer of $15,000 and Diane Jones,
its representative, came to the hospital and was present when Bigger signed the
release and received the $15,000. No threatening statements or statements of
pressure are attributed to her or to State Farm.

27

Finally, Bigger's claim that the release was a mutual mistake has no factual
support in the record.

28

On the record that we have, we conclude that Bigger was competent to release
his claim for $15,000, and no facts have been presented which justify our
setting it aside. See Matsushita, 475 U.S. at 587. The judgment of the district
court is therefore

29

AFFIRMED.